Cableview Communications of Jacksonville, Inc. v. Time Warner Cable Southeast, LLC

901 F.3d 1294
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 23, 2018
Docket17-10701
StatusPublished
Cited by3 cases

This text of 901 F.3d 1294 (Cableview Communications of Jacksonville, Inc. v. Time Warner Cable Southeast, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cableview Communications of Jacksonville, Inc. v. Time Warner Cable Southeast, LLC, 901 F.3d 1294 (11th Cir. 2018).

Opinions

BRANCH, Circuit Judge:

Cableview Communications of Jacksonville, Inc. ("Cableview"), appeals the grant of summary judgment in favor of Time Warner Cable Southeast, LLC, and Time Warner Entertainment-Advance/Newhouse Partnership (collectively, "Time *1297Warner") on Cableview's suit to recover a $560,000 payment it made to Time Warner based on a disputed indemnity claim. In February 2012, Cableview was in the process of selling most of its assets and assigning its 2011 Installation Agreement ("Installation Agreement") with Time Warner to FTS USA, LLC/Unitek Global Services, Inc. ("FTS"). Assignment of the Installation Agreement required Time Warner's written consent, which Time Warner refused to give until its indemnity claim against Cableview was resolved. Payment of the indemnity claim was worked into the Asset Purchase Agreement ("APA") between Cableview and FTS so that Cableview would pay Time Warner directly from the proceeds of the transaction.

Following payment of the claim in the APA, Cableview asserted claims of tortious interference with a business relationship, negligent misrepresentation, and violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA"),1 Fla. Stat. § 501.204, against Time Warner based on the way Time Warner obtained settlement of the indemnity claim. The district court granted summary judgment in favor of Time Warner after concluding that Cableview voluntarily paid Time Warner pursuant to a valid settlement agreement. On appeal, Cableview argues that the settlement agreement is invalid for lack of sufficiently definite terms and because it was the result of duress. Cableview also argues that even if the settlement is valid, it does not foreclose its claims.

We conclude that there are two disputed issues of fact: (1) whether Time Warner initially gave its consent to the Installation Agreement assignment through its director of technical operations Anthony Sieiro, and (2) whether Time Warner entered into new vendor contracts with FTS, which it later revoked, that made formal assignment of the Installation Agreement unnecessary. However, we conclude that those disputed issues are not material and that a reasonable jury could not find for Cableview on duress. We also conclude that the settlement agreement contains sufficiently definite terms and that Cableview cannot succeed on its other claims despite the settlement. Therefore, we affirm.

I. FACTUAL BACKGROUND

This case arises from an accident on June 18, 2008, in which a Cableview employee, James McLarty, was injured when the utility pole on which he was working collapsed. The utility pole was owned by Duke Energy Carolinas, LLC ("Duke Power"). McLarty had been working under a 2004 Installation Agreement between Cableview and Time Warner, in which Cableview agreed to install and maintain cables on Duke Power's utility poles for Time Warner. Time Warner had entered into a Pole Attachment Agreement with Duke Power in 1996 that allowed this access to Duke Power's utility poles.

Under the Pole Attachment Agreement, Time Warner agreed that it would indemnify Duke Power for injuries related to Time Warner's cables and Duke Power's poles unless caused by the sole negligence of Duke Power. The 2004 Installation Agreement also had an indemnity provision requiring Cableview to indemnify Time Warner against claims arising out of it. The 2004 Installation Agreement was superseded by a new contract in 2011.

McLarty sued Duke Power and Enerco Energy Services-the company that inspected and maintained Duke Power's poles-in the Superior Court of Durham County, North Carolina, on July 21, 2010. Duke Power tendered the McLarty case to *1298Time Warner for defense and indemnification under the Pole Attachment Agreement. On September 23, 2010, Time Warner tendered the action to Cableview and its insurer, First Mercury, under the 2004 Installation Agreement. Cableview and its insurance company rejected the tender, disputing that the 2004 Installation Agreement required it to indemnify Time Warner for the McLarty action. Time Warner defended Duke Power in the litigation, the parties settled on February 16, 2012, and Duke Power agreed to pay McLarty $362,500. Time Warner asserts that it incurred at least $560,000 to defend and settle the action.

Around the same time, Cableview was in negotiations to sell most of its assets, and to assign the Installation Agreement, to FTS. Cableview and FTS set March 2, 2012, as the closing date for the Asset Purchase Agreement, which would include assignment of the Installation Agreement. The Installation Agreement provided that any assignment, including assignment resulting from a change in ownership, required written consent from both parties.

Glenn Gravley, a system coordinator for Cableview, testified that in early 2012, he informed Time Warner director of technical operations Anthony Sieiro that FTS would be taking over the Greensboro, North Carolina, operations of Cableview. He testified that he did not ask Sieiro or anyone else for Time Warner's consent to the assignment of the Installation Agreement and no one had told him that Time Warner consented to the assignment. He also testified that he understood that Sieiro did not have authority to give Time Warner's consent to the assignment. Gravley sent an email to Cableview's president Jim Schieszer on January 11, 2012, stating that he spoke with Sieiro regarding changes in the company but never discussed assignment of the Installation Agreement. Schieszer testified that he "met with Tony Sieiro in mid to early February [2012] and asked him if he would approve the sale of [Cableview's] assets to [FTS], and [Sieiro] said yes."2 Schieszer also testified that he did not specifically mention the Installation Agreement.

Sieiro denied that he stated that Time Warner would consent to assignment of the Installation Agreement. He also testified about the nature of his job as a technical operations director. He explained that his job involved vetting new vendors by meeting with them and determining what they could bring to a business relationship with Time Warner. Once he was satisfied that Time Warner could do business with the vendor, he would "have corporate send them the forms to fill out" and then the arrangement would "go[ ] through an approval process" involving the assistant vice president, the regional vice president, and the senior vice president. There was also a renewal process that involved updating a vendor's information.

On February 17, 2012, Time Warner commenced a lawsuit against Cableview in the Superior Court for Mecklenburg County, North Carolina, on its indemnity claim by filing an application extending the time within which to file its complaint. That same day the summons was issued, and Time Warner's outside counsel Lew Glenn sent Cableview the summons and application via fax. Time Warner timely filed its complaint on March 8, 2012, alleging that Cableview violated its contractual indemnity obligation to Time Warner with respect to the McLarty action.

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Bluebook (online)
901 F.3d 1294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cableview-communications-of-jacksonville-inc-v-time-warner-cable-ca11-2018.